Supreme Court Affirms Finding that Children of Opioid Addicted Mother are CHINS

In In re M.M. and C.M., Juveniles, 2015 VT 122 (October 2, 2015), the Vermont Supreme Court affirmed the family court’s decision that M.M. and C.M. were minor children in need of care or supervision (“CHINS”).

Issue: Mother argued that the family court erred in finding that M.M. and C.M. were CHINS. Father was incarcerated. Mother had a long and ongoing struggle with opioid addiction, was charged with DWI with M.M. in the car, and was cited on two occasions for failing to use a child safety seat for M.M. Subsequently, C.M. was born opioid-addicted and underweight as a result of Mother’s use of “street” Suboxone during her pregnancy. At the time of the family court’s decision Mother was substance-free and in treatment.

Holding: The Court affirmed the family court’s finding that M.M. and C.M. were CHINS. The Court found that Mother placed M.M. in grave and real risk of serious bodily injury by driving drunk with M.M. in the car. It further found that Mother’s failure to follow a bona fide treatment program put C.M. in danger. The Court was careful to note that, standing alone, a child born addicted to drugs does not necessarily require a finding of CHINS. However, in this case Mother’s conduct compounded the situation. Specifically, she was thrown out of a treatment program while pregnant and self-medicated with street drugs during much of the remainder of her pregnancy. In affirming the Family Court decision the Court held, in essence, that the totality of Mother’s conduct warranted a finding that both children were in need of care and supervision.

Concurrence/Dissent: Justice Robinson concurred in part and dissented in part. Specifically, she argued that the majority’s decision with respect to C.M. was problematic in that it must have relied on one of two flawed analytical pathways: (1) that a mother’s pre-natal neglect of a fetus that causes injury supports a CHINS finding; or (2) that a child born of an opioid-dependent parent who has been in treatment for only a short time is a CHINS. Specifically, she argued that the CHINS statute is limited to protecting children, not fetuses in utero, and that it should not be presumed that every child born of an opioid-dependent mother, and opioid-dependent themselves as a result, is per se a CHINS. Rather, she argued that the State should be required to prove that a parent’s opioid dependence interferes with his or her ability to parent.